In the Corigliano case,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court*, as a Chamber composed of the
following judges:
_______________
* Note by the registry: In this volume, the Rules of Court referred
to are those in force at the time proceedings were instituted.
These Rules have been replaced by a revised text that came into
operation on 1 January 1983, but only in respect of cases brought
before the Court after that date.
_______________
Mr. G. Wiarda, President,
Mrs. D. Bindschedler-Robert,
Mr. D. Evrigenis,
Mr. J. Pinheiro Farinha,
Sir Vincent Evans,
Mr. C. Russo,
Mr. R. Bernhardt,
and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 22 and 23 April, 25 June and 22 and
23 November 1982,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The Corigliano case was referred to the Court by the European
Commission of Human Rights ("the Commission"). The case originated in
an application (no. 8304/78) against the Italian Republic lodged with
the Commission on 20 July 1978 under Article 25 (art. 25) of the
Convention by an Italian national, Mr. Clemente Corigliano.
2. The Commission's request was lodged with the registry of the
Court on 20 July 1981, within the period of three months laid down by
Articles 32 § 1 and 47 (art. 32-1, art. 47). The request referred to
Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby
the Italian Republic recognised the compulsory jurisdiction of the
Court (Article 46) (art. 46). The purpose of the request is to obtain a
decision as to whether or not the facts of the case disclose a breach
by the respondent State of its obligations under Article 6 § 1
(art. 6-1).
3. By Order dated 20 July 1981, the President of the Court
referred the Corigliano case to the Chamber constituted to hear the
case of Foti and others (Rule 21 § 6 of the Rules of Court). This
Chamber included, as ex officio members, Mr. C. Russo, the elected
judge of Italian nationality (Article 43 of the Convention)
(art. 43), and Mr. G. Wiarda, President of the Court
(Rule 21 § 3 (b)). The five other members, chosen by lot on 30 May 1981,
were Mrs. D. Bindschedler-Robert, Mr. D. Evrigenis, Mr. J. Pinheiro
Farinha, Mr. E. García de Enterría and Sir Vincent Evans (Article 43
in fine of the Convention and Rule 21 § 4) (art. 43).
4. Mr. Wiarda, who had assumed the office of President of the Chamber
(Rule 21 § 5), ascertained, through the Registrar, the views of the
Agent of the Italian Government ("the Government") and of the Delegate of
the Commission regarding the procedure to be followed. On 6 August 1981,
he directed that the time-limits granted to the Agent and the Delegate
under the Order of 15 June 1981 in the case of Foti and others should
also apply to the Corigliano case. The Agent accordingly had until
31 October 1981 to lodge a memorial and the Delegate was entitled to reply
in writing within two months from the date of the transmission of the
Government's memorial to him by the Registrar.
On 3 November, the President extended the first of these time-limits
to 16 November. The official French text of the Government's memorial
was filed at the registry on 23 November.
5. On 21 January 1982, the Secretary to the Commission informed
the Registrar that the Delegate would present his observations at the
hearings.
6. On 4 February, having consulted, through the Registrar, the
Agent of the Government and the Delegate of the Commission, the
President directed that the oral proceedings should open on 21 April.
7. The hearings were held in public on 21 April at the Human
Rights Building, Strasbourg. Immediately before their opening, the
Chamber had held a preparatory meeting and had authorised the use of
Italian by the person assisting the Delegate of the Commission
(Rule 27 § 3).
There appeared before the Court:
- for the Government
Mr. C. Zanghi, Delegate of the Agent;
- for the Commission
Mr. E. Busuttil, Delegate,
Mr. C. Corigliano, applicant, assisting the Delegate
(Rule 29 § 1, second
sentence, of the Rules of Court).
The Court heard their submissions and statements as well as their
replies to its questions.
8. On various dates between 15 December 1981 and 17 August 1982,
the Registrar received from the Commission and the Government,
respectively, several documents and items of information requested by
or on behalf of the Chamber or provided by the Commission or the
Government on their own initiative. This material included two
letters from the applicant to the Commission (23 April and
20 May 1980), the memorials of the Government to the Commission
(March 1979, January and May 1980) and the verbatim record of the
hearing on 12 December 1980 before the Commission.
9. At the deliberations held on 22 and 23 November 1982,
Mr. R. Bernhardt, first substitute judge, replaced
Mr. E. García de Enterría, who was prevented from attending
(Rules 22 § 1 and 24 § 1).
AS TO THE FACTS
10. As to the exact dates of the facts, there are uncertainties
and gaps in the evidence in the case- file which the efforts of the
Court, and in particular the questions it put to the persons appearing
before it, have not entirely succeeded in removing. Subject to that
reservation, the facts may be summarised as follows:
11. Mr. Clemente Corigliano, an Italian national born in 1921,
lives in Reggio Calabria, where he practises as a lawyer.
12. In March 1973, during demonstrations in Reggio, the police
arrested Mr. Santo Amodeo in a shop belonging to Mr. Corigliano and in
the latter's presence.
On 29 March, the applicant gave evidence at Mr. Amodeo's trial before
the Reggio Regional Court. His evidence directly contradicted that of
the police officers who had made the arrest. The Court upheld their
version of the facts.
On 2 April, Mr. Corigliano lodged a complaint with the Reggio public
prosecutor's office (pubblico ministero) against two judicial officers
in that town: Mr. Giuseppe Viola, President of the Criminal Chamber of
the Regional Court, and Mr. Francesco Colicchia, assistant public
prosecutor (sostituto procuratore della Repubblica); he accused them
of various offences, in particular of having acted out of personal
interest in the exercise of their duties and having deliberately
failed to declare that the police report of the arrest was false.
13. Having been informed of the complaint, the public prosecutor
(procuratore della Repubblica) decided to commence proceedings
(elevava rubrica) against the applicant for aggravated slander
(Articles 368 and 81 of the Penal Code). He did not, however, notify
Mr. Corigliano of this.
On 21 April 1973, he requested the Court of Cassation to remit the
case to another court; he relied on Article 60 - amended by
Act no. 879 of 22 December 1980 - of the Code of Criminal Procedure,
sub-paragraph 1 of which provided that (translation from the Italian):
"Where criminal proceedings are instituted against, or where an
offence has been committed against, a judge or a member of the public
prosecutor's office, and the proceedings fall within the jurisdiction
of the judicial institution to which he is attached, the Court of
Cassation shall refer the case to another court of similar
jurisdiction."
On 8 May, the public prosecutor (procuratore generale) attached to the
Catanzaro Court of Appeal sent the case-file to the Court of
Cassation, which by order of 2 July 1973, referred the case to the
Messina Regional Court.
14. Mr. Corigliano received judicial notification (comunicazione
giudiziaria) on 7 December 1973 that criminal proceedings had been
brought against him under Articles 368 and 81 of the Penal Code and
that he was entitled to appoint a defence lawyer within three days.
1. The investigation proceedings
15. There were two stages in the investigation of the case : the
first ended in a discharge and the second - following an appeal by the
public prosecutor's office - in the applicant's committal for trial.
(a) First stage
16. During the initial stage of the investigation, Mr. Corigliano
on three occasions challenged the jurisdiction of the Messina Regional
Court before the Court of Cassation.
On 11 January 1974, he alleged that all the procedural acts to date
were void. This first appeal on a point of law was held to be
inadmissible on 22 March.
On 3 February 1975, the applicant brought a second cassation appeal,
alleging a conflict of jurisdiction between the Regional Courts of
Messina and Potenza, where other proceedings were pending against him.
The Court of Cassation declared the appeal inadmissible on 3 October.
On 5 October 1975, Mr. Corigliano brought a third cassation appeal,
seeking to join the proceedings pending against him in Messina and
Potenza. On 16 October, he was informed that his appeal had not been
registered and that the joinder of proceedings fell within the
exclusive jurisdiction of the trial court (Article 48 of the Code of
Criminal Procedure).
17. The public prosecutor's office in Messina originally conducted
the investigation of the case itself in accordance with the "summary"
procedure (Article 389 of the Code of Criminal Procedure). It heard
the applicant, Mr. Viola and Mr. Colicchia on 17 December 1973.
Following Mr. Corigliano's refusal to appoint a defence lawyer, the
public prosecutor's office forwarded the case-file on 18 December to
the competent judge so that the latter could carry out a "formal"
preliminary investigation.
On 22 April 1975, the case-file was sent back to the Reggio Calabria
Regional Court so that evidence could be taken from the applicant on
commission. On 5 June, that Court declared that it lacked
jurisdiction and returned the case-file to the Messina Regional Court.
On 21 June and then on 12 December, Mr. Corigliano was summoned to
appear before the Messina investigating judge, who questioned him on
26 June and 22 December 1975.
18. On 19 February 1977, the file was transmitted to the public
prosecutor's office which asked for further investigation to be
carried out. On 2 March, it requested a copy of the judgment
delivered on 29 March 1973 by the Reggio Calabria Regional Court
against Mr. Amodeo; this was received on 31 March. On 9 April, it
sought a further hearing of the judicial officers complained of by the
applicant; Mr. Colicchia was heard on 16 June. The report of
Mr. Amodeo's arrest, also at the request of the public prosecutor's
office, was forwarded by the Reggio police authorities on
9 January 1978 and entered in the case-file.
Finally, on 11 January, the public prosecutor's office requested the
investigating judge to hear the police officer who had drawn up the
report and had gone to live in Caserta in the meantime; he was heard
on 20 January.
On the same day, the judge sent the case-file to the public
prosecutor's office so that the latter could present its final
submissions. They were presented on 6 February.
The investigating judge issued an order discharging the applicant
which was filed at the registry on 2 March; on 13 March 1978, the
case-file was sent to the public prosecutor's office.
(b) Second stage
19. On 16 March 1978, the public prosecutor's office appealed
against this order (Article 387 of the Code of Criminal Procedure).
The applicant was notified on 28 March. The "grounds of appeal" were
entered on 4 April and the following day the case-file was forwarded
to the investigation chamber of the Messina Court of Appeal. The
latter decided on 7 July to commit the accused for trial; its decision
was lodged in the registry on 11 July 1978.
2. Trial proceedings
(a) Proceedings before the court of first instance
20. On 7 August 1978, the file was transmitted to the Messina
Regional Court. On 6 February 1979, the applicant received a summons
to appear at the hearing on 30 March.
At the conclusion of the hearing, the Regional Court gave him a
suspended sentence of eighteen months'imprisonment.
(b) Appeal proceedings
21. The applicant appealed on the same day. The Appeal Court of
Messina, which had received the file on 18 June 1979, acquitted the
applicant at a hearing on 19 February 1980.
PROCEEDINGS BEFORE THE COMMISSION
22. On 29 October 1973, Mr. Corigliano lodged a first application
(no. 6481/74) in which he complained, inter alia, of the rejection of
his challenge of a judge, and of criminal proceedings instituted
against him for the aggravated slander of a judicial officer. The
Commission declared it inadmissible on 12 December 1974 on the ground
that it was incompatible with the provisions of the Convention and was
manifestly ill-founded (Article 27 § 2 of the Convention) (art. 27-2).
In a second application, lodged on 21 June 1975 (no. 7223/75),
Mr. Corigliano relied on Articles 6 and 13 (art. 6, art. 13) of the
Convention: he complained of two judgments of the Court of Cassation,
one rejecting an objection that Articles 65, first paragraph, and 66,
first paragraph, of the Code of Criminal Procedure were
unconstitutional, and the other finding that the applicant did not
have a personal right to the proper administration of justice but
merely a "legitimate interest". This application was declared
inadmissible by the Commission on 16 May 1977 on the ground that it
was incompatible with the provisions of the Convention.
23. The third application, lodged on 20 July 1978 (no. 8304/78),
referred to the two previous applications and sought to establish that
it contained relevant new information within the meaning of
Article 27 § 1 (b) (art. 27-1-b) of the Convention. Mr. Corigliano
alleged a two-fold violation of Article 6 § 1 (art. 6-1): the investigation
chamber of the Messina Court of Appeal was not "an independent and
impartial tribunal established by law", as one of its members had sat
on the Reggio Calabria Regional Court at the same time as Judge Viola;
and the "reasonable time" had been exceeded.
On 2 October 1979, the Commission declared the application admissible
in so far as it concerned the length of the proceedings.
The applicant wrote in a letter of 23 April 1980 to the Commission
that he wished to withdraw his application, but, on 20 May, stated
that he was retracting his withdrawal. On 17 July, the Commission
decided to continue its examination of the case.
In its report of 16 March 1981 (Article 31 of the Convention)
(art. 31), it expressed the unanimous opinion that there was a
violation of Article 6 § 1 (art. 6-1).
AS TO THE LAW
I. PRELIMINARY OBJECTIONS
24. The Government pleaded three preliminary objections.
A. Objection based on Article 27 § 1 (b) (art. 27-1-b) of the Convention
25. The first objection was based on Article 27 § 1 (b)
(art. 27-1-b) of the Convention. According to this objection,
application no. 8304/78 from Mr. Corigliano was "substantially the
same" as his previous applications nos. 6481/74 and 7223/75, which had
been declared inadmissible by the Commission on 12 December 1974 and
16 May 1977 respectively (see paragraph 22 above), and it contained no
"relevant new information".
26. The Court will take cognisance of preliminary objections of
this kind in so far as the respondent State may have first raised them
before the Commission, in principle at the stage of the initial
examination of admissibility, to the extent that their character and
the circumstances permitted; if this condition is not fulfilled, the
Government are estopped from raising the objection before the Court
(see, inter alia, the Artico judgment of 13 May 1980, Series A no. 37,
pp. 12-14, §§ 24 and 27, and the Guzzardi judgment of 6 November 1980,
Series A no. 39, p. 24, § 67).
27. Although the Commission's report makes no mention of this, the
Government invoked Article 27 § 1 (b) (art. 27-1-b) before the
Commission. However, they did so only after the admissibility
decision of 2 October 1979, in written observations of 28 January and
3 May 1980 and, subsequently, at the hearings on 12 December 1980.
However, nothing would have prevented them from praying in aid this
provision in their earlier memorial of March 1979, since they had
learnt of the first two applications, as well as their rejection, at
the latest in the month of October 1978 when the Commission notified
them of the third application in pursuance of Rule 42 § 2 (b) of its
Rules of Procedure (see paragraph 23 above). Moreover, the Government
acknowledged this before the Commission (see page 1 of the verbatim
record of the hearings on 12 December 1980) and before the Court
(see paragraphs 3 and 10 of the memorial of November 1981 and the oral
submissions made on 21 April 1982), without advancing any reasons to
justify a departure by the Court from its established case-law (see
the above-mentioned references from the Artico and Guzzardi
judgments).
The Court, concurring with the Delegate of the Commission, thus
concludes that there is estoppel.
B. Objection as to non-exhaustion of domestic remedies
28. Secondly, the Government pleaded non-exhaustion of domestic
remedies (Article 26) (art. 26). Before the national authorities,
so the Government contended, citing the Van Oosterwijck judgment of
6 November 1980 (Series A no. 40, pp. 15-17, §§ 30, 31 and 33), the
applicant had omitted to rely on Article 6 § 1 (art. 6-1),
notwithstanding the direct applicability of that provision in Italian
law. Nor had he requested the national authorities to expedite the
proceedings or, in the unlikely event of such action proving
fruitless, attempted to establish liability on the part of those
authorities under Article 328 of the Penal Code taken in conjunction
with Articles 55, 56 and 74 of the Code of Civil Procedure.
29. The objection in question was not put to the Commission until
after the admissibility decision of 2 October 1979. The second ground
(Article 328 of the Penal Code and Articles 55, 56 and 74 of the Code
of Civil Procedure) was put forward by the Government in their written
observations of 28 January and 3 May 1980 and then at the hearings on
12 December 1980. The first ground (direct applicability of
Article 6 § 1 of the Convention) (art. 6-1), which is not referred to
in the Commission's report, had also been raised before the
Commission, but only at the above-mentioned hearings.
Yet, as they moreover conceded (see paragraph 27 above), the
Government could have raised the issue in their memorial of
March 1979, especially in view of the fact that from the very outset
(20 July 1978) Mr. Corigliano had alleged that the "reasonable time"
had been exceeded.
Accordingly, in regard to this objection too, there is estoppel.
C. Objection that the applicant could not be regarded as a "victim"
within the meaning of Article 25 § 1 (art. 25-1)
30. Thirdly, the Government submitted that the applicant's real
aim was not to speed the course of the prosecution brought against him
but rather to avoid being convicted, and that in reality compliance
with the "reasonable time" requirement was not a source of genuine
concern to him. The letter of 23 April 1980 stating his wish to
withdraw his application (see paragraph 23 above) afforded proof of
this, in that Mr. Corigliano gave as the reason the disappearance of
the object of the dispute (materia del contendere) as a result of his
acquittal on 19 February 1980 by the Messina Court of Appeal (see
paragraph 21 above). Although he retracted his letter of withdrawal
shortly thereafter on 20 May 1980 (see paragraph 23 above), he did so
solely on account of the institution of a fourth set of proceedings
against him, which, so the Government pointed out, clearly had
"nothing to do with the length" of the third set. Consequently, in the
Government's submission, he lacked the status of "victim" within the
meaning of Article 25 (art. 25).
31. This argument was not a new one, the Government having already
put it forward, at least in substance, before the Commission.
Admittedly, they did so only after the admissibility decision of
2 October 1979, during the hearings on 12 December 1980 (see
pages 9-10, 54 and 63-64 of the verbatim record), but their action is
easily explicable since the above-mentioned letters of 23 April
and 20 May 1980 were themselves later in date than the admissibility
decision.
Although for this reason the Government are not estopped from raising
their third preliminary objection, it nevertheless cannot be upheld by
the Court. According to the Court's well-established case-law, the
word "victim" in Article 25 (art. 25) denotes the person directly
affected by the act or omission in issue, the existence of a violation
being conceivable even in the absence of prejudice; prejudice is
relevant only in the context of Article 50 (art. 50) (see, as the most
recent precedent, the Eckle judgment of 15 July 1982, Series A no. 51,
p. 30, § 66). Here, it is undeniable that the duration of the
proceedings in question directly affected Mr. Corigliano, albeit
doubtless not constituting one of his major sources of concern.
II. MERITS
A. THE ALLEGED BREACH OF ARTICLE 6 § 1 (art. 6-1)
32. The Commission expressed the opinion that the applicant had
been the victim of a breach of his right to a hearing "within a
reasonable time", within the meaning of Article 6 § 1 (art. 6-1).
The Government disagreed with this view.
1. The length of the proceedings
33. The first matter that must be determined is the relevant
period to be considered.
(a) Commencement of the period to be taken into account
34. In criminal matters, in order to assess whether the
"reasonable time" requirement contained in Article 6 § 1 (art. 6-1)
has been complied with, one must begin by ascertaining from which
moment the person was "charged"; this may have occurred on a date
prior to the case coming before the trial court (see, for example,
the Deweer judgment of 27 February 1980, Series A no. 35, p. 22,
§ 42), such as the date of arrest, the date when the person concerned
was officially notified that he would be prosecuted or the date when
the preliminary investigations were opened (see the Wemhoff judgment
of 27 June 1968, Series A no. 7, pp. 26-27, § 19, the Neumeister
judgment of the same date, Series A no. 8, p. 41, § 18, and the
Ringeisen judgment of 16 July 1971, Series A no. 13, p. 45,
§ 110). Whilst "charge", for the purposes of Article 6 § 1
(art. 6-1), may in general be defined as "the official notification
given to an individual by the competent authority of an allegation
that he has committed a criminal offence", it may in some instances
take the form of other measures which carry the implication of such an
allegation and which likewise substantially affect the situation of
the suspect (see, inter alia, the above-mentioned Eckle judgment,
Series A no. 51, p. 33, § 73).
35. The commencement of the proceedings in issue dates back to
April 1973. On 21 April, the Reggio Calabria public prosecutor,
having had referred to him the complaints made by the applicant
against two judicial officers, requested the Court of Cassation to
remit the case to another jurisdictional area; he did not inform
Mr. Corigliano. Without hearing either the prosecuting authorities or
the defence, the Court of Cassation made an order to this effect on
2 July, confining itself to specifying the town in question (Article 60
of the Code of Criminal Procedure - see paragraph 13 above).
The "judicial notification" issued by the public prosecutor attached
to the Messina Regional Court was served on the applicant on
7 December 1973 (see paragraph 14 above). "Judicial notification"
is an act of process recently introduced under Italian law, which is
intended to give the person affected official notice of the
commencement of criminal proceedings against him and of his
entitlement to appoint a defending lawyer within three days. For his
part, Mr. Corigliano did not contest that he learnt only on
7 December 1973 of the bringing of a prosecution against him. The
Court takes this latter date as the date from which there was a
"charge" within the meaning of Article 6 § 1 (art. 6-1).
(b) End of the period to be taken into account
36. The end of the period of "time" to be taken into account fell
on the day the Messina Court of Appeal rendered the final judgment of
acquittal, that is on 19 February 1980 (see paragraph 21 above and the
above-mentioned Eckle judgment, Series A no. 51, p. 34, § 76).
2. The reasonableness of the length of the proceedings
37. The reasonableness of the length of the proceedings has to be
assessed in each instance according to the particular circumstances.
In this exercise, the Court has regard to, amongst other things, the
complexity of the case, the conduct of the applicant and the conduct
of the judicial authorities (see the above-mentioned Eckle judgment,
ibid., p. 35, § 80).
The present case concerns proceedings that extended more than six
years. This would, at first sight, appear to be a considerable lapse
of time for a case of this kind.
(a) The complexity of the case
38. In the submission of the Government, the case did involve a
certain complexity as a result of its having to be remitted to a court
other than the one to which Mr. Viola and Mr. Colicchia were attached.
39. Doubtless the transferral of jurisdiction to Messina did make
the conduct of the case a little more complicated, but, in the opinion
of the Court, the legal issues involved were in themselves relatively
simple. It is noteworthy in this connection that the only measures of
investigation carried out seem in fact to have been the questioning of
the judicial officers complained of by Mr. Corigliano, of
Mr. Corigliano himself and of one witness, as well as the examination
of a number of documents (see paragraphs 17 and 18 above).
(b) The conduct of the applicant
40. As regards the conduct of the applicant, the Government
contended that there had been abuse by the applicant of his right to
appeal on a point of law to the Court of Cassation (see paragraph 16
above) - notably in respect of his last two appeals - since each time
the outcome was foreseeable. In their submission, Mr. Corigliano had
also protracted the proceedings by refusing, on 17 December 1973, to
appoint a defence lawyer on the occasion of his being heard by the
public prosecutor's office (see paragraph 17 above).
41. On the first point, the applicant conceded that his three
cassation appeals pursued substantially the same object, namely to
bring to the attention of the Court of Cassation the alleged
unconstitutionality of Article 48 of the Code of Criminal Procedure,
which deals with joinder of cases relating to the same accused.
The Court sees no call to adjudicate on whether or not there was abuse
of the right to appeal on a point of law; it confines itself to
noting, as did the Commission (see paragraphs 43-44 of the report),
that the effect of the cassation appeals on the length of the
proceedings was limited. In point of fact, those appeals did not
impede the preliminary investigation as was maintained by the
Government. The appeal that required the longest time to be heard
- the second - did not at all bring the activities of the Messina
Regional Court to a standstill. This is borne out by the various
measures that were taken in the meantime, namely the forwarding of the
case-file to the Reggio Calabria Regional Court (22 April 1975), the
serving of a summons to appear (21 June 1975) and the questioning of
the applicant (26 June 1975) (see paragraph 17 above).
42. On the second point (refusal to designate a defence lawyer),
it should be recalled that Article 6 (art. 6) does not require
the person concerned actively to co-operate with the judicial
authorities (see the above-mentioned Eckle judgment, Series A no. 51,
p. 36, § 82).
43. To sum up, the behaviour of Mr. Corigliano did not appreciably
contribute to prolonging the proceedings.
(c) The conduct of the judicial authorities
44. The manner in which the judicial authorities conducted the
case is to be assessed by reference to three successive stages, namely
the preliminary investigation, the trial at first instance and the
hearing on appeal (see paragraphs 17-21 above).
(i) The preliminary investigation
45. The first phase of the proceedings began on 17 December 1973
and ended on 7 July 1978 with the committal for trial (see
paragraphs 35 and 19 above); it thus lasted four years and seven
months. The Government attributed this length of time to the
cassation appeals entered by the applicant during the preliminary
investigation and to the complexity of the case (see paragraphs 40 and
38 above).
46. The time devoted to hearing the cassation appeals was not
excessive. Thus, the first was dismissed by the Court of Cassation
after two months and ten days (11 January 1974 - 22 March 1974), the
second after eight months (3 February 1975 - 3 October 1975). The
third appeal was not even registered by the Court of Cassation, which
informed the applicant accordingly eleven days later (5 October 1975 -
16 October 1975).
47. The Court has already noted that the case did not involve
great complexity (see paragraph 39 above). The Court would add that
although the transferral of the case to the Messina Regional Court was
not in itself incompatible with the proper administration of justice
and although the normally resultant delays should not therefore be
capable of raising an issue under Article 6 § 1 (art. 6-1), it is
difficult to understand one decision entailing a delay of seven weeks
(22 April - 5 June 1975), namely the decision to take evidence from
Mr. Corigliano on commission at the Reggio Regional Court
notwithstanding the removal of the case from the latter's jurisdiction
by the Court of Cassation (see paragraph 17 above).
What also calls for comment is the absence of any measures of
preliminary investigation during two periods, the first of thirteen
months, the second of fourteen months (22 March 1974 - 22 April 1975
and 22 December 1975 - 19 February 1977, see paragraphs 16-18 above).
The Government not having come forward with any explanation in their
respect, the Court holds these two delays to be unjustified.
(ii) The proceedings before the Messina Regional Court
48. The procedure at first instance lasted approximately seven
months: it commenced before the Messina Regional Court on
7 August 1978 and ended on 30 March 1979. The time taken does not
appear unduly long, especially in view of the fact that it began to
run during the legal vacation which terminated on 15 September.
(iii) The proceedings before the Messina Court of Appeal
49. The Messina Court of Appeal, following the reference of the
case to it on 30 March 1979, received the case-file on 18 June 1979.
Whilst the transmission of the case-file thus did not occur until
after two and a half months, it should not be overlooked that the
applicant had had twenty days for filing the grounds of his appeal
(Article 201 § 1 of the Code of Criminal Procedure). In addition,
with judgment being delivered by the Court of Appeal on
19 February 1980, the procedure lasted a total of less than eleven
months. The time taken appears reasonable, particularly in view of
the fact that the accused was not being held in custody and that the
consideration of his case, since it involved no urgency, could be
interrupted during the legal vacations.
(d) Conclusion
50. To sum up, at the stage of the preliminary investigation at
Messina the proceedings brought against Mr. Corigliano were subject to
delays incompatible with Article 6 § 1 (art. 6-1).
B. THE APPLICATION OF ARTICLE 50 (art. 50)
51. At the public hearings, the applicant submitted a claim for
just satisfaction under Article 50 (art. 50) in the event of the
Court finding a violation. He requested the Court to recommend the
Italian Government to make Article 368 of the Italian Penal Code
inapplicable to "political and/or social trials" and to direct the
Government to pay both "just compensation for the moral and material
prejudice suffered" and "just reimbursement of the costs and fees".
52. According to the Agent of the Government, the request in
respect of Article 368 of the Penal Code, which makes it a punishable
offence to utter slander, could not be of relevance. The claim for
compensation and reimbursement, he further argued, was devoid of
object, the applicant having stated in his letter of 23 April 1980 to
the Commission that he had received satisfaction with his acquittal by
the Messina Court of Appeal and was withdrawing his application.
53. The Court considers that the matter is thus ready for decision
(Rule 50 § 3 of the Rules of Court).
As to the claim concerning Article 368 of the Penal Code, it is
sufficient to note that this falls completely outside the scope of the
case brought before the Court in July 1981.
As to the alleged pecuniary damage, Mr. Corigliano has neither
established its existence nor even indicated its nature. Furthermore,
as the Government have rightly emphasised, the facts of the case give
cause to believe that observance of the "reasonable time" requirement
did not constitute one of his primary concerns (see paragraphs 30-31
above). The same remark applies to the alleged non-pecuniary damage;
in any event, this damage has, in the opinion of the Court, already
been sufficiently repaired by the finding of a breach of Article 6 § 1
(art. 6-1) (see notably, mutatis mutandis, the Le Compte, Van Leuven
and De Meyere judgment of 18 October 1982, Series A no. 54, p. 8,
§ 16).
The only legal costs possibly recoverable are those that
Mr. Corigliano might have incurred in order to try to prevent the
violation found by the Court or to obtain redress therefor (see the
above-mentioned Le Compte, Van Leuven and De Meyere judgment, ibid.,
p. 8, § 17). However, he incurred no such costs in Italy, and
before the Convention institutions he argued his case in person. On
the other hand, he is entitled to reimbursement of the travel and
subsistence expenses he had to meet in attending the hearings on
12 April 1980 before the Commission and on 21 April 1982 before the
Court, these expenses not having been borne by the Council of Europe
(see the above-mentioned Le Compte, Van Leuven and De Meyere judgment,
ibid., pp. 9-10 and 11, §§ 21 and 25). An equitable assessment of
these expenses would be 2,200,000 Lire.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares that the Government are estopped from relying on
Article 27 § 1 (b) (art. 27-1-b) of the Convention and the rule of
exhaustion of domestic remedies;
2. Rejects the Government's objection that the applicant could not be
regarded as a victim within the meaning of Article 25 § 1 (art. 25-1);
3. Holds that there has been a breach of Article 6 § 1 (art. 6-1) to
the extent specified in paragraphs 47 and 50 of the reasons;
4. Declares inadmissible the claim for just satisfaction in so far as
it relates to Article 368 of the Italian Penal Code;
5. Rejects the said claim in so far as it seeks monetary compensation
for the alleged pecuniary and non-pecuniary damage;
6. Holds that the Italian Republic is to pay to the applicant, in
respect of his travel and subsistence expenses in coming to
Strasbourg, the sum of two million two hundred thousand
(2,200,000) Lire.
Done in English and in French, the French text being authentic, at the
Human Rights Building, Strasbourg, this tenth day of December, one
thousand nine hundred and eighty-two.
For the President
Signed: Rudolf BERNHARDT
Judge
Signed: Marc-André EISSEN
Registrar